from the not-how-to-do-it dept

As a whole bunch of people on my Twitter feed are letting me know, video game streaming company Twitch* (read disclosure below!) has announced that it has turned on Audible Magic to begin silencing "Video on Demand" videos that make use of copyright-covered music -- including in-game music. This only covers the video on demand (stored) videos, rather than the live streams that Twitch is probably most well known for. As Twitch's General Counsel Boo Baker explains:

We’ve partnered with Audible Magic, which works closely with the recorded music industry, to scan past and future VODs for music owned or controlled by clients of Audible Magic. This includes in-game and ambient music. When music in the Audible Magic database is detected (“Flagged Content”), the affected portion of the VOD will be muted and volume controls for that VOD will be turned off. Additionally, past broadcasts and highlights with Flagged Content are exportable but will remain muted.

The Audible Magic technology will scan for third party music in 30 minute blocks — if Audible Magic does not detect its clients’ music, that portion of the VOD will not be muted. If third party audio is detected anywhere in the 30-minute scanned block, the entire 30 minutes will be muted.

This, quite reasonably, has many folks up in arms -- with Felicia Day making the point in the most humorous of ways: "So Twitch has become a silent movie company now?" That's because pretty much every video game has some music, and it's unlikely (at best) that users of Twitch cleared that music. In the past, we've seen some similar issues with YouTube's ContentID system flagging similar "Let's Play" videos on that site.

Really, what this seems to demonstrate is the failure of the "one-size filter fits all" world that the legacy content industry lives in. The music and movie industries have long demanded such filters, sometimes arguing (though failing) that the current DMCA requires filters like Audible Magic or Content ID. US copyright law currently does not require such a thing, though you know that the industry is pushing hard to get that into any copyright reform bill. And, for all the problems of ContentID (and there are many), it's the kind of solution that you can see often does make sense in a YouTube world (though it has way too many false positives).

However, when it comes to Twitch, this kind of solution seems to make no sense at all. People are not going to Twitch to hear music. They're going to see video games. In fact, this kind of solution on Twitch seems inherently counterproductive for just about everyone. These days musicians want their music in video games because it's fantastic for those musicians, both making them money and giving them a ridiculous amount of exposure. There are even entire discussions for indie musicians about how to get their music into video games because it's such an important promotional avenue.

A fairly strong case can be made that in-game and ambient video game music on Twitch is fair use. It seems to be clearly transformative in the same sense that scanning whole books to create a searchable index is transformative fair use or that a book of magazine covers of movie monsters is transformative fair use, or that a book of concert posters is transformative fair use. In each case, while the entire work is used, and the original may have been licensed, the use here is for an entirely different purpose.

And yet, with this move, Twitch seems to be inherently stating that fair use for the audio is an afterthought, rather than a key component to what it's doing.

Given the various lawsuits against other video sites, it's quite likely that Twitch was facing serious legal pressure to make this move. As we've noted, the music industry has repeatedly made arguments in other lawsuits that such filtering was necessary. Just recently, video site Vimeo announced it, too, was using Audible Magic. And, for years, legacy content players have insisted that using such a tool was required.

But it's not. There's nothing in the law that requires a site to do this. And even if you can make the case that it makes sense for general interest user-generated video sites, that's simply not the case with Twitch, whose whole purpose is to stream video from video games. It's yet another case of taking a broad maxim ("video sites should use automated filtering to silence or take down "copyrighted" material") to extreme and ridiculous ends where it doesn't make sense at all.

In other words, it's another example of the pressures and risks of today's copyright laws getting in the way of a useful innovation, leading to a result that is actually worse for everyone.

From a pure "avoiding liability" position, you could see why Twitch would make this decision. Assuming that some recording industry lawyers were pressuring the company, arguing that continuing to allow those videos without a fingerprinting solution put it at risk of losing its DMCA safe harbors. Because that's the kind of argument an RIAA or an ASCAP might make. And this is really a big part of the problem with copyright law today (and especially statutory damages). Even if Twitch believes that not having such a tool is okay, it might still get taken to court and could face a massive judgment if a court decides the other way. Thus, all of the ridiculous incentives of copyright law today push Twitch to make use of this solution that, without any question, makes everyone worse off. It harms musicians. It harms Twitch. It harms video game fans. It harms Twitch's users. It harms video games. Who does it benefit besides Audible Magic and maybe some lawyers?

Copyright remains totally broken.

* Disclosure: As you may know, just a couple of weeks ago, Twitch announced that they were providing matching donations for our net neutrality crowdfunding campaign, something we are quite thankful for. That said, the company's support of that effort doesn't change our views at all on this being a dumb move that harms everyone.

Re:

I get the article's position of leaving Google out of it, since it is just a rumor, but it's also misleading in this regard because of the influence Google has on this potential deal.

There have been a lot of rumors, but it's pretty broad speculation to argue that *rumors* of a deal would lead to this. In fact, one could make an argument that the fact that Twitch went with Audible Magic could be seen as signs of *not* doing a deal, since as soon as they're a part of YouTube, they'd likely strip out Audible Magic and go with ContentID. So why go through the hassle of setting up Audible Magic just to switch to ContentID a few weeks later?

So, yeah, I'd thought about adding some sort of footnote to make the point I just made here, but it really seemed beside the point.

Re:

"This article is nefarious because it's not Twitch doing the muting, but Google, indirectly.

It's no secret there's discussion of a possible buyout by Google."

Do you have any evidence that Google are actually requesting this, or is it only your speculation based on the proximity of these two events? If the latter, why is it "nefarious" not to have come to the same assumption based on lacking evidence?

"I highly doubt Twitch would have made a single change to its business model if Google didn't come looking."

Other sites have come under attack for far sillier reasons. I'd be surprised if the RIAA wasn't making Twitch a prime target after its successes at crippling other services, especially as some gaming companies have shown no problems attacking videos of their own games.

"If copyright law is this powerful as to require the silence, Twitch would have never existed in the first place."

Nor would YouTube, Soundcloud, etc. We know this, the **AAs are still trying to catch up with reality. In the meantime, they are apparently choosing to lose revenue for all parties by changing their practices rather than fight. Sad, but there you go.

Re: Re:

There you go again - Google shill to the end.

Can't you just admit that Google is paying you to say this kind of thing and they are behind a totally different company that is rumored to possibly be on the radar of Google for a buyout signing a deal for a content matching system that is different than the one Google uses so they can piss off as much of their audience as they can before the buyout is completed?

This is obviously a misinformation campaign that has been handed down to you by your Google corporate masters.

Re: Re: Re:

Not sure if troll or idiot. I hope you're not paid for this yourself, else someone's getting poor value for money.

Tell you what, present your evidence, or at least come up with a conspiracy theory that's not nonsensical.

"signing a deal for a content matching system that is different than the one Google uses so they can piss off as much of their audience as they can before the buyout is completed?"

...and then... what? It's the fact that the filtering exists in the first place that's the problem, not the choice of vendor. Unless you're trying to say that Google will remove all filtering if the deal goes through, rather than just use their own, this is not a particularly compelling conspiracy. Given Google's own history, that particular scenario is unlikely.

Unless you have something approaching evidence to present, of course. Hopefully better than the half-assed mundanity you've tried to pass off as evidence previously.

Re: Re: Re:

"You're being pretty willfully blind if you think this has nothing to do with the Google buyout."

That's one way of looking at it. There are others.

What's funny is that the same criticisms in the article are largely applicable whether or not Google are involved. Yet, people are trying to redirect attention away from those and on to blaming another company. One that's also been criticised roundly in the past for the same actions.

The question is...

In part, psychological warfare

There is a nefarious dynamic at work here, which is undoubtedly too subtle for the parties involved to easily pick up on in the heat of battle. By putting legal pressure on companies who know that what they are doing is quite OK, the easy way out for the target is to say "it's illegal, so we're doing everything we can to stop it". It puts the target into a much more defensible legal position, and it also does something to quell the public who often says "ah, it's not their fault, it's just illegal". Let's call this "good marketing" for the sake of argument.

Rather than actually calling it what it is, and educating people about the subtle legal issues, the safe route is to claim that the response is a necessary and valid thing.

An example of the problem at work, from the first time I came across something like this and it really bothered me, is from Sprint. I got a Samsung phone on which they had disabled a trivial Android setting - shutter sound. After spending a bit of time scratching my head about why I could not even find the setting, I went searching the forums and FAQs for the answer. What I found shocked me. They turned off the ability to set "none" as the shutter sound on the camera because they stated that they were legally required to do so. By whom, I do not know. The official answer was short on specifics. My understanding (at the time, and probably still true) is that there is no legal requirement for an electronic camera manufacturer to simulate an analog camera shutter to warn people that their picture is being taken, but that is flat out what Sprint claimed they were bound by. I rooted my phone and fixed the problem. Most people won't.

My take on this is that a company that simplifies a legal question in this way, to make it easily understandable as a binary right/wrong issue, plays directly into the hand of their opponent.

and suddenly the company rumored to have been bought starts going through sweeping changes. Adding an easily integrated, off the shelf solution for censoring audio of stored video. Removing long term storage of raw streams, and crippling the length of highlighted videos, telling people if they need the service that was previously provided to just use the services of the company said to have just bought them. Killing off the general streaming branch of their company, telling people 'Oh, don't worry, we're transferring your accounts to twitch. Just remember, Twitch only allows videogame streams, so those table top gaming sessions which are the only thing you've been using us to stream are not allowed.' It's not hard to see that something major has changed in the background. Given that Google is rumored to have purchased them, and that as you say, Google has been criticized for the same actions in the past, it's no surprise that people conclude that Twitch is merely bringing itself into alignment with it's new owner's desires and lay the blame appropriately.

The reason the first comment has to do with the buyout is that unlike other sites reporting on this, Techdirt declined to mention the Google buyout rumors as being the possible cause, and then Mike continued to deny the possibility in the comments.

Which is kind of problematic from the standpoint that he's blaming Twitch for what many see as likely being the fault of Google. And as you can see, attempting to ignore the rumors instead of acknowledging them as a possible cause; tends to make the following conversation about how they're ignoring who is really to blame for the new policies, rather than about the new policies themselves.

Ah dammit

Re: The question is...

I can't check at the moment, but I'm pretty sure it just flat out mutes the audio. The audio of the commentator and the game sounds are all on the same audio track as far as I know, so there's no way to discriminate between the two.

They could make this all go away

Twitch should be in a position to counter this quite easily, if they wanted to.

"Twitch is the world's leading video platform and community for gamers". If a video game producer wants to advertise their game, either on the site, through user uploads or community groups dedicated to the game, they need to agree to allow members of the community/site "fair use" access to ALL the content in those games.

Repeat after me (once again)

Gamers are stupid. They'll gripe and moan about this, and then they will willingly bend over and take it, because, as always, they lack the collective self-control to organize, boycott, and bring Twitch to its knees via their combined economic power.

It's pretty telling from the shutdown down of Justintv Twitch has a deal in the making, Youtube was rumored to be buying Twitch 1 billion I think , whether or not that's true is yet to be determined ,the content ID system was widely used on justintv ,they possibly moved the system over to twitch after closing Jtv, Id know I was shutdown more than 100 times by it. actually played this https://www.youtube.com/watch?v=CJn_jC4FNDo and was shutdown 9 times in a day

Re: Re: Re:

Re:

This is simply silly. Twitch wouldn't need to bother to do this in advance of a Google buyout at all, and this is likely to be totally unrelated. If it were about Google, then Google would just impose it after they bought it.

Re:

Having pulled down Twitch vids for use in a separate video, this is because 1) Twitch saves your video streams in 30 minute blocks, so even if you wanted to download a 2 hour stream, you'd get 4 30-minute video files, and 2) it's easier on the back end to cut the audio for the whole video instead of trying to automagically cut together a new 30-minute video block (or multiple smaller video blocks) with the relevant portions cut out.

Bad choice of names.

Re: Re:

There are good reasons for Twitch to do these ahead of officially being bought out. Crippling highlight lengths, removing long term storage of broadcasts, and telling people to just use Youtube instead prepares to enforce the branding that Twitch is for live streaming, and Youtube is for VODs. Implementing Audible Magic allows Twitch to be in compliance with whatever agreements Google has with the MPAA and RIAA at the time it's acquired. Closing Justin.tv kills Twitch's biggest, least fixable problem with copyright infringement.

Re: Re: Re: Re:

True, rumors can technically not confirm anything. It does not confirm that a deal has been made.

However that's not what I said, I said that the rumors say a deal has been confirmed. Aka, that a deal has been made and Google has purchased Twitch, which is different than the previous rumors of a deal being in the works.

Given all the other changes, it's hardly something to dismiss out of hand the way you seem to prefer to do.

Re: In part, psychological warfare

"I got a Samsung phone on which they had disabled a trivial Android setting - shutter sound."

Carriers often disable basic functionality. This is one of the reasons why the first thing I do with a phone is replace the OS with real Android rather than the bastardized versions that the carriers put on there.

"they stated that they were legally required to do so."

They are not wrong -- there are many jurisdictions where the shutter sound is legally required (Japan springs to mind, but there are lots of others).

Infringement

A lot of streamers will stream Pandora in the background. It was pretty damn obvious Twitch would have to crack down on this eventually. Especially for the big streamers who partner with Twitch. And music is actually a pretty big part of what can make or break a stream. In-game music might fall under fair use, but Pandora almost certainly does not.

It currently only covers VoD, though that is probably because it is significantly easier to tackle. Implementing a system to handle live stream infringement is going to take a awhile. Though they could probably acquire licenses for that fairly easily.

This is the second-worst possible move Twitch could've made. (Worst possible move would've been to attack the streams while they're still live.) They had a windfall of goodwill thanks to Twitch Plays Pokémon, and now they just flushed it all away with this stupidity.

I just hope Twitch tries to deflect blame by tattling on whatever company put them up to it. Nintendo, maybe? They've been pulling a lot of that sort of garbage lately. Normally I'd say Sony, but the PS4's controller has a dedicated "upload gameplay video" button; Sony's not stupid enough to spend a lot of money making it easier for people to upload video and then spend a lot more money to try and stop people from uploading video, right?

Re: Where's the app?

Anything that doesn't contractually release itself under an irrevocable CC or similar license in a reasonable period of time implicitly accepts an 'all rights reserved' position and thus 'works with the copyright monopoly'. I don't care if the content does come from the RIAA/MPAA, it's not the company that we should be trying to boycott, it's excessive copy protection laws and works that (implicitly) exercise those laws (by not releasing their content under a permissive license after a reasonable period of time).

It's not just a matter of 'who' to boycott, it's a matter of 'what' to boycott. It's not just a 'company' that we want to avoid supporting it's their practices that we want to avoid supporting. The practice of (implicitly) releasing your content under an 'all rights reserved' license by not explicitly using a better license is bad no matter who does it.

Re: Infringement

listen to you, bowing and scraping to your koroporate overlords, instead of standing on your own two hind legs and baring your fangs...

is that REALLY what twitch was about ? people were downloading a crappy recording of a stupid video which had some shitty song in the background and THAT was depriving the MAFIAA of a sale ? ? ?

r u SERIOUSLY saying that ? ? ?

(and -no- i DON'T care what 'the law' is; 'the law' is MEANINGLESS because it ONLY works for the 1%, and works against the 99%, 'the law' DESERVES no respect under lawless Empire...)

using NOTHING other than uncommon common sense, you SHOULD be able to see how this is a losing proposition for SOCIETY; and the ONLY ones who 'win' are the MAFIAA... society as a whole GAINS NOTHING, and loses a LOT...

Re: In part, psychological warfare

I'm surprised that these phones don't have a 'missed call reminder' option that can be configured for certain contacts to make a beep every so often if there is a missed call from that contact. The best it has is an option that will slightly vibrate the phone to tell me there is a missed call only after I pick it up. There is a missed call reminder app but the reviews on it show that it's not always reliable.

Re: Re: In part, psychological warfare

Re:

Normally I'd say Sony, but the PS4's controller has a dedicated "upload gameplay video" button; Sony's not stupid enough to spend a lot of money making it easier for people to upload video and then spend a lot more money to try and stop people from uploading video, right?

Not unless it was part of their nefarious plan to increase the statistics of verified copyright infringement, so they could use said evidence to justify more draconian copyright laws. No, they would never do that.

Remember, just because they gave you the button doesn't mean you have also purchased the requisite (and soon to be mandatory) license to push/use it.

Re: Re: Re: In part, psychological warfare

Where is it? I tried Googling Missed call alert android or Missed call reminder android and I don't see any indication this is a standard android feature. Instead various apps come up suggesting this is not a standard feature.

Re: The question is...

I cannot see how that can be avoided. I know commentators on Youtube use a requirement to avoid uninterrupted music for x seconds. But many of them have come to terms with it and just silenced the problematic games. The problems are far more prevalent with specific developers, but as I hear it, the problems of false positives and random takedowns are common.

Re:

Re: Re: Infringement

I am saying that many Twitch streamers are knowingly committing copyright infringement and if music truly doesn't matter (like so many here claim it does not) then no one should have any problem discontinuing the use of music on Twitch streams and VoD from here on out. Having to eliminate audio entirely on existing VoD in 30 minute fragments is unfortunate. But anyone who has video uploaded knows damn well they are not supposed to have unauthorized music unless they live under a rock and have blatantly ignored Twitch's ToS and streamer agreements. This should surprise no one.

Re: Re: Re: Re: Re: In part, psychological warfare

From a pure "avoiding liability" position, you could see why Twitch would make this decision. Assuming that some recording industry lawyers were pressuring the company, arguing that continuing to allow those videos without a fingerprinting solution put it at risk of losing its DMCA safe harbors. Because that's the kind of argument an RIAA or an ASCAP might make. And this is really a big part of the problem with copyright law today (and especially statutory damages). Even if Twitch believes that not having such a tool is okay, it might still get taken to court and could face a massive judgment if a court decides the other way.

I think we've seen plenty of disruptive startups who've been crushed by giving in to pressure like this, rather than fighting it out - when you give the copyfraud alliance an inch, they'll take mile after mile, and will sue you into the ground the moment you stop giving it to them.

Copyright: The Prohibition of the 21st Century

This is why it's important to go on the offensive in copyright reform. Moments like this are a wake-up call to how broken and one-sided modern copyright laws are, and they're only going to get worse. Thinking the fight was over on January 18, 2012 was the users' biggest mistake, and the consequences include the arbitrary silence of their game footage and the currents state of living death Net Neutrality is in right now.

The webmasters should also join the fight. They also had to learn the hard way by being forced to mute said game footage out of paranoia of getting sued. If the way things are going continue, they're going to be forced to watch their labor of love go up in smoke by force because they failed a spot check.

If both don't realize what the true problem is and try to actually do something about it, then they'll continue to endure an era that makes the Prohibition Era seem benevolent in retrospect.

TechDirt is about as unbiased as you can get

To me, this is yet another ho-hum article about companies overly-conservative knee-jerk reaction based on fear of the big bad boys in the copyright industry (note I didn't say content).

However the most notable part of the story is meta. The disclosure that the company who is the subject of this article's shaming gave money to TechDirt to support their reporting. Gives me a warm, fuzzy feeling that the $210 I've given was well-spent.

Re: Re: Re: Re: Re:

"Techdirt declined to mention the Google buyout rumors as being the possible cause"

If I had written the article, I'd have done the same. I wouldn't want to misdirect with rumours and guesses as to a "real" cause, I'd stick to the known, undisputed facts - that Twitch are making the changes.

The reaction to this, however, is pretty silly. Whether Twitch or Google are ordering the changes, Twitch are making them. The same criticisms apply whoever is ordering them. Sorry if this wasn't reported in the way you'd personally demand, but the conversation is ridiculous.

Re: Re: Re: Re: Re:

Even if Twitch believes that not having such a tool is okay, it might still get taken to court and could face a massive judgment if a court decides the other way.

Considering the DMCA's safe harbors against vicarious liability are not contingent upon installing fingerprinting technology or doing any kind of preemptive blocking, how likely do you think would be such an outcome?

Re:

Always remember, with how the legal structure is set up currently('whoever has the biggest bank account wins'), even a threat of a lawsuit is often enough, even if the recipient is 99% sure they would win.

As an example, consider Veoh, who despite winning every case against them, was still driven into bankruptcy due to being forced to defend themselves in court again, and again, and again.

So whether or not they'd win in court, there's still a good chance that, if they tick off the wrong people/groups, they, and any other company without a massive warchest for legal funds, could be driven into the ground, hence why they're being so careful and bowing down to pseudo-legal requests like this.

Re: Repeat after me (once again)

Yes, let's just boycott a major revenue stream. You do realize that the ones hit the hardest by this are the ones that do this as their source of income, right? So... if you don't like the rules at work, you'll just stop coming in, right? No. Because you're stupid, just like the gamers.

Re: Re: Re: Infringement

Music doesn't matter? Who ever made that claim? It certainly doesn't sound like something you'd hear on Techdirt where Mike tends to be more geared towards helping creators (Hint: This includes musicians) make more money, not less.